Rachna Bhadra vs Arun Bhadra
2012 Latest Caselaw 3073 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     MAT.APP. 14/2012

%                       Date of Decision: 9.5.2012

RACHNA BHADRA                                       ..... Appellant
                            Through :   Mr. Sudhir Nandrajog, Sr.Adv
                                        with Mr.Dhirij Philip &
                                        Ms.Jasvinder Kaur, Advs.

                   versus

ARUN BHADRA                                       ..... Respondent
                            Through :   Mr.Anurag Jain, Adv.

CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J.

*

1. This is an appeal challenging the order dated 3 rd October, 2011 passed by the learned Principal Judge, Family Court, Dwarka in SMA Case No.2/2011.

2. The relevant facts for the disposal of the present appeal are as under:-

A petition u/s 28(1) of Special Marriage Act, 1954 (hereinafter referred to as `the Act') was filed by the appellant as well as respondent stating therein they got married to each other on 19th December, 1992 and their marriage was registered under Section 13 of the Act. After marriage, they lived together as husband and wife and

a female child, namely, Roshni was born from their wedlock, who is presently of 17 years of age. On 6th July, 2011, parties had filed a divorce petition seeking dissolution of their marriage by a decree of divorce which was registered as SMA 18/2011 before the Family Court at Saket Courts. The said divorce petition was dismissed as withdrawn and liberty was given to them to file fresh petition before appropriate court having territorial jurisdiction. Thereafter, the parties filed fresh petition i.e., SMA 2/2011 under section 28(1) of the Act before the Family Court at Dwarka seeking dissolution of their marriage by a decree of divorce by mutual consent. Parties had stated therein that they are living under the same roof for more than 18 years but they could not reconcile their differences and they have decided to dissolve their marriage by mutual consent. They had also stated that for the past five years they have not cohabited despite living under the same roof. The Ld.Principal Judge, Family court, Dwarka dismissed the petition on the ground that the parties have stated in the petition they have not cohabited under the same roof for the last five years, but there is possibility that they could have cohabited at some other place. The learned Principal Judge also noted that appellant/wife is still the nominee in ULIP which stands in the name of respondent/husband. Accordingly, the petition was dismissed by holding that the parties are still performing their marital obligation towards each other and have also not contended that they did not cohabit as husband and wife at all since the last five years. Aggrieved

with the same, present appeal is filed.

3. Learned counsel for the appellant has contended that it has been categorically stated in the petition that though the parties are living together under the same roof but they have not cohabited for the past five years. It is contended that the learned Judge has drawn inference from the aforesaid pleadings that they are cohabiting else where. It is contended that such an inference is contrary to material on record. It is contended that in the petition under section 28(1) of the Act it has been categorically stated that parties are not temperamentally compatible neither in terms of their respective approach for leading life nor could they adjust to the post marital responsibilities despite having married for about 19 years. All their efforts for reconciliation have failed and despite living under the same roof for more than 19 years, they could not reconcile and have agreed to dissolve their marriage by decree of divorce by mutual consent. It is also stated that the appellant-wife has agreed not to seek any maintenance or alimony from the respondent-husband and she has received all her istridhan etc. It is further stated in the petition about custody of their daughter that she will stay with appellant-wife till she turns 18 years and thereafter she will have right to choose whether she wants to be with mother or father and respondent will have access to their daughter. It is further stated that all the terms between the parties have been settled and reading the entire petition, a conclusion cannot be drawn that parties are cohabiting elsewhere as is drawn by learned Principal

Judge.

4. In the present case, parties have categorically stated in the petition u/s 28(1) of the Act that though they are living under the same roof but they have not cohabited for the last five years and there is no possibility of their living together as husband and wife. Their petition is duly verified and is supported by their respective affidavits. It is also stated in the petition that their claims for dowry articles, permanent alimony, istridhan and custody of child have also been settled. It is also stated that they are leading their life independently peacefully after separation from each other. It is also stated in the petition that respondent will vacate the premises which he is presently sharing with appellant. Even additional affidavits are filed by parties wherein it is stated that their daughter is mature enough to understand and bear the separation of her parents and therefore it has been mutually decided that both the parties should part their ways gracefully.

5. The requirement under Section 28 of the Act are as under:-

"(i) They have been living separately for a period of one year;

(i) They have not been able to live together and;

(ii) They have mutually agreed that marriage should be dissolved."

6. Reading the entire material on record including the joint petition

and respective affidavits of the parties, it cannot be said that they are cohabiting as husband and wife elsewhere as is observed by the learned Family Judge. The petition fulfils all the requirements as are there under section 28(1) of the Act.

7. The appellant-wife who is also present in person has submitted that she is handicapped person since her childhood and their marriage has totally broken down for the past five years. The house is duplex type and they are living at separate floors. Their daughter is studying in 12th class and her studies may not suffer and for that reason they are living under one roof otherwise they are not having no emotional attachment to each other. She is managing of her own. There is no communication either verbal, physical or emotional between them. The respondent-husband has also stated in the same manner.

8. Considering the material on record, no inference could have been drawn by the learned Principal Judge that parties are still performing their marital obligations towards each other. There is specific affidavits of non cohabition. There are averments in the petition that they are not living together as husband and wife which are duly verified. The petition fulfils all the requirements of Section 28(1) of the Act. They have also settled all their claims as is stated in the joint petition and as per terms of settlement annexed with the same.

9. The other ground on which learned Principal Judge has dismissed the petition is that appellant is still the nominee in the ULIP

which stands in the name of respondent. Learned counsel for the appellant has pointed out that the said policy is for the benefit of the daughter and appellant is merely an appointee as the child is below 18 years.

In view of the above discussion, the impugned order cannot be legally sustained and accordingly the same is set aside. The learned Principal Judge, Family Court shall take up the petition of the parties and record their statement on oath and thereafter shall pass appropriate order on it in accordance with law. The parties to appear before the concerned Family Court on 17.05.2012.

The appeal is allowed. There is no order as to costs. The record of Family Court be sent back forthwith.

VEENA BIRBAL, J May 9, 2012 ssb